NAF Rethinks Church-State Separation

Not sure if I completely agree with Noah
Feldman’s proposal in the New York Times Magazine for resolving the church-state
In the courts, the arrangement that I’m
proposing would entail abandoning the Lemon requirement that state action must
have a secular purpose and secular effects, as well as O’Connor’s idea that the
state must not ‘endorse’ religion. For these two tests, the courts should
substitute the two guiding rules that historically lay at the core of our
church-state experiment before legal secularism or values evangelicalism came on
the scene: the state may neither coerce anyone in matters of religion nor expend
its resources so as to support religious institutions and practices, whether
generic or particular.
But, I find his analysis quite compelling and
The O’Connor compromise between values
evangelicalism and legal secularism may be unsatisfactory, but the truth is that
neither approach deserves to prevail. Both are self-contradictory: they fail
precisely where they want to succeed, namely in reconciling religious diversity
with unity. The values evangelicals want to find shared values, but that leads
them to rely on the unexamined assumption that deep down, Americans agree on
what matters. The trouble is that ‘we’ often do not agree…
Meanwhile, the legal secularists have a
different problem. They claim that separating religion from government is
necessary to ensure full inclusion of all citizens. The problem is that many
citizens — values evangelicals among them — feel excluded by precisely this
principle of keeping religion private. Keeping nondenominational prayer out of
the public schools may protect religious minorities who might feel excluded; but
it also sends a message of exclusion to those who believe such prayer would
signal commitment to shared values. Increasingly, the symbolism of removing
religion from the public sphere is experienced by values evangelicals as
excluding them, no matter how much the legal secularists tell them that is not
the intent.
and his crucial point obvious and relevant,
even if constantly overlooked:
Just what is threatening to religious
minorities about Christians celebrating the holiday or singing carols in school?
What, exactly, is the harm in being wished Merry Christmas even if you’re not
celebrating? The state has not made Christianity relevant to citizenship nor has
it spent taxpayers’ money to advance the cause of the church. It has simply
acknowledged the preferences of a majority. Some members of religious minorities
may choose to spend December feeling bad that they are not part of the majority
culture — but they would have this same problem even if Christmas were not a
national holiday, since Christmas would still be all around them. The answer is
for them to strengthen their own identities and be proud of who they are, not to
insist that the majority give up its own celebration to accommodate
Atheists will doubtless maintain that any
public religion at all — like ‘under God’ in the Pledge of Allegiance —
excludes them by endorsing the idea of religion generally. But this misses the
point: it is an interpretive choice to feel excluded by other people’s faiths,
and the atheist, like any other dissenter from a majoritarian decision, can just
as easily adhere to his own views while insisting on his full
Ultimately, the nation may have more success
generating loyalty from religiously diverse citizens by allowing inclusive
governmental manifestations of religion than by banning them.
In the long run, this approach is more
likely to focus our national debates on substance instead of procedure — on
what God or reason or whatever source of values teaches about human life and
intimate choices, not about whether God belongs in the conversation at all.